What Happens to Custody and Visitation when a Parent Moves?

by Justin D. Riem

An issue frequently arises when parties have a minor child together and one parent wants to relocate with the minor child. For purposes of this article, the motives behind the relocation will not be discussed, although they can play an important part under certain circumstances. Usually, this issue will arise when it is the custodial parent who wants to relocate and the non-custodial parent does not want the minor child to move away. This article will very briefly outline the situation involving relocating parents, what may or may not be allowed, what the Court may consider, and what you should know to deal with the situation.

To start, the stereotypical child custody lawyer answer is that “it depends.” To be fair, it really does depend on each case. However, there are four common scenarios when this issue arises most often: a) non-married parents; b) married parents after separating but before divorce proceedings are started; c) married parents during divorce proceedings; and d) parents after the case has been concluded. I’ll briefly discuss each below.

Non-Married Parents

Regardless of whether the biological father is listed on the birth certificate, there are generally only three scenarios where an unmarried father may be recognized as the legal father of the minor child: a) when the parents were married at the time of the birth (certain factors must also be met); b) when paternity is established by Court Order; or c) when paternity is established by Affidavit.

Unless one of these three scenarios exists, Iowa law generally does not recognize the biological father as the legal father, with any rights to prohibit the mother from moving the minor child away (without first initiating court proceedings). Therefore, until paternity is established, the mother has significant, almost unfettered, power to relocate with the minor child. In order to address this, fathers who believe they fit into this category should seek the services of a trained attorney to understand the process going forward and learn what they need to file to protect their interests. Likewise, mothers who fit into this category should also seek the services of a trained attorney to understand how to address any opposition to their proposed relocation, regardless of whether or not the father has commenced a court action.

Married Parents Before Filing

In this scenario it is assumed the parties have separated and are living apart, but neither has filed for divorce. Absent special circumstances, both parents are deemed to be joint primary custodians of the minor child. Because of this, the parties may find themselves in a legal quagmire. Technically, either of the parents can relocate with the minor child and the other can attempt to prevent it. Although the relocating parent is “free” to move with the minor child, there are serious things both parties must consider. For example, assuming the relocation has not already occurred, the non-relocating parent may quickly file for divorce and try to prevent the move.

Alternatively, if the relocation has already occurred, the non-relocating parent may file for divorce forcing the relocating parent to constantly travel back (numerous times throughout the dissolution action) to the courthouse in the county where the non-relocating parent filed. This can be expensive and time-consuming depending on how far away they relocated. Keep in mind that parties must reside in Iowa for at least twelve months before they can file for divorce. Additionally, a divorce petition can be filed in any county where either party resides at the time of filing. In this scenario, given that the parties are separated, it is likely that divorce proceedings will be forthcoming sometime in the near future. Thus, timing and location play a crucial part of the parties’ lives, decisions, and proceedings.

Another brief point to consider is that, although some states may have shorter divorce residency requirements than Iowa’s 12-month period, Iowa will be presumed the “home state” of the minor child, even after relocating to another state, unless the minor child has lived in the new state for at least six months before filing. Note, there are a number of other factors Courts may consider in determining home state, but this is the primary factor that must be met. Even if divorce proceedings have not yet been started, if parties are separated and one wishes to relocate or has relocated with the minor child, it is strongly suggested that you still seek the services of a trained attorney to guide you through the process going forward.

Married Parents During Divorce

It may be necessary or unavoidable for one of the parents to relocate during the pendency of a divorce action. Similar to the scenario of married parents before filing, absent special circumstances and unless there is a temporary order in place, in the eyes of the Court and the law, both parents are deemed joint primary custodians of the joint minor child. Thus, either of the parents can relocate with the minor child and the other can prevent it. There will have to be Court involvement unless: a) the parties reach an agreement regarding this issue; b) the non-relocating parent consents to the move; or c) the relocating parent either abandons the move or moves without the minor child. There are a number of factors the Court must consider when deciding the issue of relocation during the pendency of a dissolution action.

Depending on the circumstances, the Court may also need to appoint a Guardian ad Litem to advocate for what’s in the minor child’s best interests. Either or both parties may file for a temporary order regarding custody, which could also address the issue of relocation. Alternatively, either or both parties may seek injunctive relief to allow or prevent the relocation. Seeking injunctive relief, however, is no simple task and requires the filing party to adhere to strict procedural and legal requirements. If divorce proceedings have been commenced and you are not represented by an attorney, it is highly suggested that you seek the services of a trained attorney, regardless of whether you are the relocating or non-relocating parent.

Parents After Disposition

Life happens and things don’t always turn out like you hoped or even expected sometimes. Even the closest and most cooperative of ex-spouses experience change in their lives and relocation becomes necessary or simply unavoidable. If the parents’ custody or dissolution proceedings have been concluded or finalized, whether by Court-issued decree or Court-approved stipulation, unless the decree or stipulation addresses the topic of relocation, the parties are left adrift with no guidance.

It’s important to know that, even when the custodial parent wants to relocate with the minor child, the current decree or stipulation controls. Meaning, the custody arrangement and visitation schedule that’s set forth in the most recent decree or stipulation will remain in full force and effect, regardless of whether the custodial parent wants to relocate or has already relocated. If a non-custodial parent cannot or does not receive their court-ordered custody or visitation rights because the custodial parent has relocated with the minor child, the custodial parent may be subject to a contempt action.

In order to address this, typically the custodial parent will want to modify the current arrangement. If the parties cannot come to an agreement, this can be done through Court intervention by filing a petition for modification. Under Iowa law, custody and visitation orders can be modified upon a showing of a substantial change in circumstances that was not contemplated at the time the original order was entered. Courts generally require more certainty (or unavoidability) in the relocation if modification proceedings will be commenced before the relocation actually happens.

The law on this area is vast and has many intricate facets, which can be unique to each case. Generally speaking, the parent with primary physical care of the minor child is given the final “say” concerning where the child’s home will be. However, a change of residence by the primary caretaker, which involves a substantial distance, may justify a change of custody if the reasons for the move and the quality of the new environment do not outweigh the adverse impact of the move on the child.

In Iowa, a “substantial change in circumstances” is established if the parent wishes to relocate the minor child 150 miles or more from the residence at the time of the original custody order. This does not mean that custody will automatically be transferred, but merely means that a “substantial change in circumstances” has occurred. The non-relocating parent must then show they can render superior care than the relocating parent and demonstrate how the relocation will detrimentally affect the child’s best interests in order for the Court to consider modifying custody.

Conclusion

There are a large number of factors the Court must consider when determining whether or not to disallow removal of minor children from their present home. Keep in mind that, if both parents are found to be equally competent to minister to the minor child, the Court will not change custody and will allow the relocation, subject to a new visitation schedule. Therefore, regardless of whether you are the relocating, non-relocating, custodial, or non-custodial parent, there are many things you must consider.

Because the law on this subject is expansive and ever-changing, you should seek the services of a trained attorney who is well-versed in this area of family law, who keeps themselves up to date on all the changes to the law, and who understands how to make the best arguments in line with your best interests.